Legal Prescription

ALRT's Exploration of Addiction, Law, and Medicine

Month: August 2019

Smoke and Mirrors: Dissecting the Competing Incentives of Vaping Laws

By J. Alexander Short

Across the United States, an emerging trend is gaining steam (or vapor), garnering the attention of legislators, policymakers, and the tobacco industry. Vaping is a new way to administer nicotine, THC, and sometimes, nothing at all. Instead of combusting plant matter and inhaling smoke, vaporizers heat a liquid into a vapor the user inhales. The popularity of vaping is widespread and continues to grow. Due to this, the United States finds itself in a watershed moment as the law has not yet caught up with the trend. As U.S. legislators pass reactive legislation, it is necessary to consider both the science and the competing incentives underlying this legislation. 

The passage of legislation relating to vaping appears to be happening at an astonishing rate, considering the typical slow speeds at which legislators operate. Florida passed a ban on indoor vaping on July 1. New Mexico amended existing law to accommodate such a ban a month earlier. San Fransisco recently passed legislation banning the sale of e-cigarettes, with the city’s board of supervisors citing the rise of vaping among teenagers as their motivation for the ban. The list goes on. However, the flurry of legislative activity on the state and local level pale in comparison to some proposed legislative changes on a national scale.

The profound effect of vaping can be seen in the rise of the success of the Tobacco 21 movement. Tobacco 21 aims to raise the legal age to purchase tobacco from 18 to 21, and has been passing legislatures across the country with wild popularity. In fact, this movement has recently found its way to the halls of the Senate, where Senator Mitch McConnell actively supports legislation to raise the legal age of tobacco purchase to 21. The Majority Leader cited a spike in vaping among teens as a major reason for his support of the legislation. 

The passage of the San Fransisco ordinance banning e-cigarettes sparked considerable debate involving the role of competing incentives underlying this type of legislation. With San Fransisco home to one of the largest vaping companies, Juul, this recent ban is teeing up a national healthcare debate. Policymakers must understand the complex incentives involved with this issue in order to not pass harmful legislation.

Vaping is often considered an effective tool that cigarette smokers can use to help quit smoking. Although its efficacy remains unclear, vaping has provided cigarette smokers an additional tool to help battle the urge to continue smoking. Because of this, e-cigarette bans potentially remove a tool that may help cigarette smokers attempting to quit. When this debate comes at a time when the CDC recently declared smoking rates in the United States dropped to record lows, policymakers ought to be careful not to impede further progress, let alone erase progress already made. 

The potential appeal to children is also a central concern fueling this legislative response to vaping. Harkening back to the days of Joe Camel, parents and legislators alike are concerned about the potential of vaping to expose children to nicotine at younger and younger ages. These concerns are not unfounded. As recently as July, 2019, a House subcommittee accused the vaping giant, Juul, of intentionally advertising and promoting their products to children, citing them as 100% safe. Indeed, recent studies show a startling trend in which middle and high school students are turning to vaping at ever-growing rates. Indeed, ‘vape juice’ comes in hundreds of flavors, including Strawberry Watermelon Bubblegum, Sour Worms, Swedish Fish, Peachy Rings, and Lemon Drops. 

In addition to these concerns, standard health concerns underlie the vaping trend. The day this article was written, the news featured a story of teens hospitalized due to vaping. There is science that backs this up. According to the Centers for Disease Control and Prevention (CDC), the aerosol produced when vaping contains ultra fine particles, flavoring such as diacetyl, volatile organic compounds, cancer-causing chemicals, and heavy metals such as nickel, tin, and lead — all in addiction to nicotine. Needless to say, the use of a ‘vape’ poses at least some health risks that rightfully worry parents and legislators. 

However, legislative reactions to some of these harms may serve to pose net harm to the public if carried out in hasty and uninformed ways. As with any major health issue, there are countless incentives, harms, and benefits to consider when drafting potential legislation. Whether the goal of such legislation be to protect potential vape users from health problems or to insulate children from harm, legislators and policymakers alike must recognize that it may be harmful to drive individuals who use vaping as a smoking cessation tool back to cigarettes. 

Measuring the Opioid Crisis: The Need for Standardized Cause-of-Death Reporting

[Cross-posted from the Petrie Flom Center at Harvard Law School’s Bill of Health Blog]

By J. Alexander Short

All too often, the modern opioid epidemic is reduced to numbers. Over 70,000 drug overdose deaths occurred in the United States in 2017. This marked a substantial increase from the more than 63,000 deaths reported in 2016. So many news articles, books, and even policymakers depend on these numbers as an accurate measure of the opioid crisis. However, can we rely on their accuracy?

Continue reading here.

Safe Injection Site Fights to Call Philadelphia Home

By J. Alexander Short

Dr. Thomas Farley, Philadelphia Health Commissioner, recently stated “[t]he opioid problem is perhaps the greatest public health crisis this city has faced in the last century.” The opioid crisis continues to wreak havoc in Philadelphia, where it takes nearly four times more lives than homicide. Safehouse Philly, a recently proposed safe injection site in Philadelphia, seeks to address this crisis in a politically controversial manner. The organization quickly drew ire from a U.S. Attorney who promptly filed a federal lawsuit against Safehouse. The opioid crisis is now taking center stage as federal courts in Philadelphia will soon determine the fate of safe injection sites in the United States. 

Safe injection sites, also referred to as supervised injection sites and overdose prevention sites, are facilities with medical supervision that allow intravenous drug users to administer their drug of choice in a safe and supervised manner. Dating back to 1986, the existence of safe injection sites now exist in many countries, including Canada, Australia, and several Western European countries. Despite this, safe injection sites remain a point of controversy in the United States.

Proponents of safe injection sites argue they offer many positives for society. One collateral effect of such sites is to reduce drug consumption on the streets or in other public places and promote safe disposal of drug paraphernalia. As opposed to a criminal or sanction-based approach to a public health problem like the addiction crisis, safe injection sites focus on a harm reduction model. In other words, acknowledging that behaviors like illicit drug use will occur, these health policies focus on the reduction of the harms associated with such behaviors.

On August 9, 2018, the articles of incorporation for a new nonprofit organization were filed with the Pennsylvania Department of State. Only five pages long, the articles bear the recognizable signature of Ed Rendell, former Governor of Pennsylvania, Mayor, and District Attorney of Philadelphia. Since this filing, the embryonic nonprofit organization has quickly garnered national attention, raising a litany of health policy and legal issues. 

According to the Safehouse Philly website, the organization is a “privately funded Pennsylvania nonprofit corporation whose mission is to save lives by providing a range of overdose prevention services.” Safehouse will seek to meet this goal by providing four different services to “participants” of their services. First, Safehouse will offer a medically supervised consumption room for intravenous drug administration, providing sterile equipment, fentanyl test trips, emergency care for overdoses, and safe disposal of equipment. Safehouse additionally offers medically supervised observation rooms, presumably where participants will remain under medical supervision and in close proximity to emergency services. Safehouse will offer other medical services, such as wound care and on-site Medication Assisted Treatment (MAT). Finally, wraparound services such as social, medical, legal, and housing services will be provided to participants. 

The proposal of a tax-exempt safe injection site in Philadelphia was expeditiously met with opposition from the U.S. Department of Justice. On February 5, 2019, the U.S. Attorney in Philadelphia filed a lawsuit against Safehouse seeking declaratory judgment that the organization’s activities would result in violation of federal law – namely, section 856 of U.S. Code. That portion of the law prohibits anyone from “knowingly [maintaining] any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance.” According to a letter written on November 26, 2018, Safehouse Philly “respectfully disagree[s] with the conclusion that [their] proposed consumption room would violate federal law.” 

This controversy raises a broader question relating to the role of safe injection sites in the opioid crisis. Clearly, there are benefits to the existence of safe injection sites. Safe injections allow those using intravenous drug to administer dangerous drugs in a clean, medically supervised space that allows for interaction with the healthcare system. This allows for an important point of contact for individuals with significant health risks directly and indirectly related to their substance use disorder. Additionally, by creating such a point of contact, the individual can be offered important wraparound services relating to housing, jobs, and treatment. 

Clearly, however, the implementation of safe injection sites are not without their share of controversy. As the Justice Department vowed in 2018, safe injection sites may be met with legal action. Then U.S. Deputy Attorney General Rod Rosenstein stated he is “not aware of any valid basis for the argument that you can engage in criminal activity as long as you do it in the presence of someone with a medical license.” This raises the basic question of what role policymakers ought to play when the law arguably prohibits something that helps ease the strain of a healthcare crisis. Is the role of healthcare professionals to save lives or to save lives so long as it is within the realm of the law?

Safehouse Philly raises another interesting point about how society ought to respond to needs unmet by the government. The opioid crisis is wreaking havoc on this country and the government, despite its efforts, is failing to properly respond to the needs of the country. Nonprofits often enjoy tax exempt status because they fill societal needs that are not properly addressed by the government. Safehouse Philly is taking this one step further and filling needs not only unaddressed by the government, but arguably forbidden by the government.

What happens when the government fails to respond to health crises? Or even more specifically, what happens when the law conflicts with the healthcare needs of its citizenry? These questions must be addressed in order for policymakers to effectively respond to this crisis. The fate of Safehouse Philly remains uncertain. However, what happens in Philadelphia may very well impact the future of safe injection sites throughout the country. 

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